The opinion of the court was delivered by: Carl J. Barbier United States District Judge
Before the Court is Defendant Kevin J. Boyd's Motion for a Limited Stay of Proceedings (Rec. Doc. 27) and Plaintiff's Opposition (Rec. Doc. 45), on supporting memoranda without oral argument. Defendant Boyd requests a protective order staying the proceedings for a period of 90 days from the date of filing of the motion, or until the completion of a criminal trial in the Criminal District Court for the Parish of Orleans. Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that Defendant's Motion for Stay (Rec. Doc. 27) should be DENIED.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This case presents claims for damages arising from alleged sexual molestation by Defendant Boyd and inflicted upon Plaintiff Darryl Lodge. In October 2010, the Plaintiff filed a civil action in Mississippi state court against Boyd, alleging that Boyd established a confidential relationship with Plaintiff and used his position as a church pastor in Jackson, Mississippi to engage in a sexual relationship with Plaintiff. Defendant alleges that a criminal complaint was also filed in Mississippi, containing essentially the same allegations made in the Mississippi civil lawsuit.
On May 26, 2011, Plaintiff filed the instant lawsuit. Defendant alleges that this lawsuit makes virtually identical allegations of conduct as those made in the Mississippi civil suit. Defendant avers "upon information and belief," Rec. Doc. 27-1, at 2, that Plaintiff also filed a criminal complaint with the New Orleans Police Department ("NOPD"), making nearly identical allegations of conduct. Thus Defendant alleges that the conduct that is the subject of the instant lawsuit is essentially the same as that alleged in the criminal complaints in Louisiana and Mississippi. Defendant further states that in connection with the Mississippi civil suit, he was issued a deposition subpoena, and that Plaintiff's counsel asked Defendant's Mississippi counsel to permit an NOPD investigator to be present at the deposition. The Mississippi attorney declined that request.
Based on the request that an NOPD investigator be allowed to attend the civil deposition in Mississippi, Defendant avers that there is an "open, active and ongoing criminal investigation by the New Orleans Police Department against Bishop Boyd" and that Plaintiff is using civil discovery devices to assist in the criminal investigation. Id. This is alleged to jeopardize Boyd's Fifth Amendment right against self-incrimination. Therefore, Defendant has filed the instant motion for stay, to permit him to neither answer nor participate in civil discovery until the resolution of any criminal proceeding in Louisiana that is based on the conduct allegations that are common to both the instant lawsuit and any criminal proceeding in Louisiana. The Court has granted Defendant's several motions for extensions of time to file responsive pleadings. Defendant has neither answered nor filed any "Rule 12" motion.
Defendant asserts that he faces a dilemma: either (1) assert his Fifth Amendment right in this lawsuit due to an alleged ongoing criminal investigation, which will forfeit his defense in this suit; or (2) defend in the present lawsuit, and forfeit his Fifth Amendment right to avoid self-incrimination as to the criminal proceeding. He posits a stay of the instant suit as the solution. He argues that the facts of the instant civil suit and the criminal proceeding are identical: the same actors, the same alleged actions, and the same time periods are at issue. Even though no criminal indictment has issued, Defendant fully intends to preserve his right against self-incrimination. He argues that Plaintiff will not be prejudiced by a stay because Defendant lives and works in this jurisdiction. Because the states of Louisiana and/or Mississippi, with Plaintiff's assistance, are actively seeking an indictment, the present case should be stayed until the criminal investigation is concluded.
Plaintiff's position is that Defendant is not entitled to a "blanket" Fifth Amendment privilege as to all aspects of civil discovery, especially where Defendant's assertion that there are criminal complaints is "vague, non-specific and unsubstantiated." Rec. Doc. 45, at 2. Plaintiff points out that Defendant has answered the complaint in the Mississippi civil action, and his suggestion that he should not be required to responsively plead in the instant action is inconsistent and disingenuous. Most importantly, Defendant presents no reliable evidence of an actual "criminal proceeding" against him: no case number and no proof of charge or arrest. Mr. Boyd's counsel's affidavit stating that upon his information and belief there is a criminal investigation is improper because it is not based on the affiant's personal knowledge. Defendant's bare allegation that Plaintiff's Mississippi counsel requested the presence of an NOPD investigator at the civil deposition does not establish that a criminal proceeding is ongoing. Finally, the Plaintiff's interests are weighty. He alleges ostracization by the church at which Defendant is a bishop and other effects from the outstanding civil lawsuit. Therefore, Plaintiff requests that the Court allow this civil action to proceed and address Fifth Amendment invocations by the Defendant as to specific inquiries.
This Court has previously found that "[a] district court may stay a civil action pending the resolution of a related criminal proceeding under 'special circumstances.'" LeBouef v. Global X-Ray, Civil Action No. 07-5755, 2008 WL 239752, at *2 (E.D. La. Jan. 29, 2008) (citing S.E.C. v. First Financial Group, 659 F.2d 660, 668 (5th Cir. 1981)). Defendant proposes a cited five-factor test used in determining whether a civil case should be stayed pending the outcome of a criminal proceeding. He asserts that the following factors are considered:
1) the extent to which the issues in the criminal and civil cases overlap; 2) the status of the case, including whether the defendant has been indicted; 3) the plaintiff's interest in proceeding expeditiously weighed against the prejudice to the plaintiff caused by a delay; 4) the private interest of and burden on the defendant; 5) the interest of the court and the public interest.
Rec. Doc. 27-1, at 3 (citing to LeBouef, 2008 WL 239752). The cited test proposed by the Plaintiff is essentially the same, sans the "interest of the ...